Where Victims' Rights Go Wrong

By Barry Boss
Monday, April 23, 2007

Since 1981, the Justice Department's Office for Victims of Crime has dedicated a week in April to recognizing crime victims' rights. The week -- this year's observance began yesterday -- is usually marked by rallies, candlelight vigils and other activities intended to promote victims' rights and to honor crime victims and those who work on their behalf.

Victims deserve the recognition that this week provides, and they deserve sympathy and compensation for their losses. But I am increasingly concerned about what I believe they do not deserve, which is the right to serve as de facto prosecutors, a practice that is quietly insinuating itself into the legal system.

Our desire to increase victims' rights is closely related to our national obsession with being "tough on crime." While this mantra makes for good political rhetoric, it often leads to illogical and irrational criminal justice policies. Being "tough on crime" has led to harsh mandatory minimum sentences in federal drug cases that have disproportionately punished minorities. It has resulted in first-time offenders serving life sentences even though their crimes involved no weapon and resulted in no physical injuries; in 6-year-olds being arrested for tantrums at school; and, worst of all, in innocent people on death row.

Courts have increasingly become more cognizant of the rights of victims. In 1996, restitution became mandatory for a variety of federal crimes. In 2002, Congress provided the victims of violent crimes and sexual abuse the right to speak at a defendant's sentencing, even though courts already had latitude in any kind of case to permit victims to speak at sentencing or to receive information from victims before sentences were imposed. And last year, the issue reached the Supreme Court in a murder case in which the victim's supporters had attended the trial wearing buttons that displayed a picture of the victim (the court avoided addressing whether such conduct is prejudicial).

The latest manifestation of our "tough on crime" policy comes in the proposed amendments to the Federal Rules of Criminal Procedure, which will implement the 2004 Crime Victims' Rights Act. One U.S. district judge ruled that the statute renders victims "independent participant[s] in the proceedings" and "commands that victims should be treated equally with the defendant, defense counsel, and the prosecutor."

Under the act, victims have the right to be heard in court on questions of bond, plea agreements and sentencing, and they have the right to confer with prosecutors about a case. If victims are unhappy with how a prosecutor or trial court has treated them, they are permitted to seek relief in the U.S. Court of Appeals, and the appellate court must rule on their application within 72 hours (an unprecedented remedy).

Thus, under the act, victims at a minimum become a member of the prosecution team and, indeed, have significant leverage over the professional prosecutors. The president and many in Congress support an amendment for crime victims' rights that would incorporate several of these points into the Constitution.

While we may support the notion that victims' rights should be at least as strong as those of defendants, within the context of the criminal justice system these rights are mutually exclusive. Any rights provided to the victim must come at the expense of the rights provided to a defendant. Indeed, providing the victim with a role in the prosecution assumes a crime has been committed, despite the bedrock constitutional proposition that the accused is presumed innocent.

When we turn victims into members of the prosecution team, we distort a process, so carefully constructed more than 200 years ago, that eschewed vigilante justice or prosecution for personal ends in favor of prosecution by the sovereign with significant rights afforded to the accused. We expect prosecutors to make decisions about whom to prosecute and what types of sentences to seek based on myriad considerations, including, but far from limited to, the interests of victims. Where victims play a controlling role in the prosecution, the consideration of those factors no longer focuses on what is best for society but rather on what victims need or want as "justice."

I sympathize with individuals victimized by criminals. I understand their anger, outrage and desire for vengeance, particularly when faced with the kind of malevolence displayed last week at Virginia Tech. Securing assistance and compensation for victims is an unquestionable priority, and we need to promote healing to the greatest extent possible.

But the criminal justice system cannot focus on the victim; rather, it must follow its rich tradition of protecting society as a whole, ensuring that justice is achieved in accordance with the Constitution. As we appropriately focus on improving the plight of crime victims this week, let's not forget about the plight of the falsely accused or of the criminal justice system itself.

The writer, a criminal defense lawyer in Washington, is a former assistant federal public defender and former co-chairman of the U.S. Sentencing Commission's Practitioners' Advisory Group.

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